Planning – RBKC Code of Conduct

In response to residents’ concerns RBKC have published a draft code of conduct for Councillors and Officers when dealing with planning matters. The Chelsea Society consulted its members and has responded to the consultation as follows:

The Society welcomes the publication of this draft Code, and welcomes in particular the following statement of principles on which the Council’s planning function is based:

connecting with residents;

focusing on what matters;

listening to many voices;

involving before deciding;

communicating what we’re doing;

inviting residents to take part;

being clearly accountable;

responding fairly to everyone’s needs

However, the Code as actually drafted does not attach much importance to the needs or opinions of local people.

The Borough is fortunate to have two strong and well-established amenity societies, The Chelsea Society and The Kensington Society. The Chelsea Society has more than a thousand members, and has been representing the interests of local people for more than ninety years. The Borough also has many well organised and effective Residents’ Associations.

It is difficult for each individual resident to have a meaningful input into local planning policies, so it is important that the local Amenity Societies and the Residents’ Associations have the opportunity to be fully involved in the planning process from an early stage and not be simply presented at a late stage with the results of preparations and discussions in which they have had no part. The Chelsea Society therefore propose the following changes to the draft: [1]

INVOLVEMENT OF LOCAL PEOPLE

Local people are aggrieved when they find that much more time is given to the applicant and his advisers, and to officers arguing in favour of the application, than is given to objectors and their representatives. The Society therefore proposes new clauses in section 1 as follows:

1.1.1 Before deciding a planning application, the relevant committee shall allow equal time for representations for and against the application. The same shall apply to officers deciding applications under delegated powers and negotiating Planning Performance Agreements if they have listened to oral representations.

1.1.2 Subject to 1.1.1 if the committee chairman considers that the 3 minutes normally allowed for oral representations is not sufficient in any particular case he may extend it if he has received before the meeting a request do so, giving reasons.

1.1.3 Meetings of the Planning Applications Committee shall be video-recorded, and live-streamed on the Council’s website. [This is essential as it is often impossible for residents to attend the meetings in person]

1.1.4 Officers should bear in mind at all times that it is their function to advise, not to decide (except where decision making powers have been delegated to them)

PRE-APPLICATION DISCUSSIONS

2.1.2 Advising or contributing to advising on behalf of the Council does not prevent officers being involved in making subsequent or related decisions or advising councillors on the Planning Committee.

The Society proposes:

2.1.2 In the case of applications considered by the Chief Executive to be major or controversial, officers who have given pre-application advice should not make subsequent or related decisions or advise the Planning Applications Committee.

[Of necessity officers giving pre-application advice, will have formed a relationship, perhaps over months or even years, with applicants and their advisers. It is better that delegated decisions are made, and advice to committee is given, by an officer who has not been so involved].

7.5.1 The Planning Committee Chairman may request or the Director of Planning may suggest a briefing for planning councillors on a potential application and provide an opportunity for questions to be asked. Officers will organise the briefing normally alongside, but not part of, a Planning Committee meeting.

The opinions offered by officers during the course of pre-application discussions are without prejudice to the final decision of any subsequent planning application

The Society proposes:

7.5.1 The Planning Committee Chairman may convene, and the Director of Planning may suggest, a briefing for planning councillors on a potential application and provide an opportunity for questions to be asked. Officers will organise the briefing normally alongside, but not part of, a Planning Committee meeting. In the case of applications considered by the Chief Executive to be major or controversial, The Chelsea Society and The Kensington Society shall be invited to meetings relating to sites in their respective areas, together with any registered Residents’ Association in whose area the site is located.

Officers shall not make commitments in the course of pre-application discussions, and any views expressed are without prejudice to the final decision of any subsequent planning application.

7.1 Discussions between a potential applicant, interested parties and the Council prior to submitting an application can be of considerable benefit to all parties. ….

7.5.2 Only a potential applicant, officers and planning councillors will be entitled to participate in the meeting. Other interested parties, such as relevant ward councillors and local amenity groups, will be invited to attend. At the discretion of the Planning Committee Chairman these interested parties will be able to participate in the meeting by, for example, asking questions of the potential applicant. Both the Members’ Code of Conduct and this Code apply at these meetings and they will follow the procedures in paragraph 7.5.3.

The Society proposes:

7.5.2 A potential applicant, officers and planning councillors are entitled to participate in pre-application meetings, and other interested parties, such as relevant ward councillors, local amenity groups and immediate neighbours, will also be invited to attend. In the case of applications considered by the Chief Executive to be major or controversial, The Chelsea Society and The Kensington Society shall be invited to meetings relating to sites in their respective areas, together with any registered Residents’ Association in whose area the site is located. In all cases these interested parties will be able to participate in the meeting by, for example, asking questions of the potential applicant and the planning officers and any experts, and equal time shall be given to those for and against the application. Both the Members’ Code of Conduct and this Code apply at these meetings and they will follow the procedures in paragraph 7.5.3.

7.5.3 A written advice note will be prepared by the planning officer for all formal pre-application discussions, in the interest of public transparency and consistency in decision making. The note will be (except in clearly justified exceptional cases) made public as soon as possible, and in any event on submission of the relevant application.

The Society proposes:

7.5.3 A note of the meeting and of any advice given will be prepared by the planning officer for all pre-application discussions. In the interest of public transparency and consistency in decision making, the note will be placed on the Council’s website as soon as possible, and notified by e-notify, whether or not a planning application is made. There shall be a special section of the Council’s website for pre-application meetings, alongside those for applications, decisions, and appeals.

[It is welcome that records of pre-application meetings will be published. They should be published straight away after the meetings have taken place and irrespective of whether a subsequent planning application is made. Local people have a right to know what advice is being given by Council officials and to be made aware that a particular development is under consideration.]

12.1 Councillors may find site visits helpful, particularly for major applications. Where they take place, such visits will be arranged by the Director of Planning and a planning officer will attend.

The Society proposes:

12.1 Councillors may find site visits helpful, particularly for major applications. Where they take place, such visits will be arranged by the Director of Planning and a planning officer will attend. In the case of applications considered by the Chief Executive to be major or controversial, The Chelsea Society or The Kensington Society shall be invited to such visits relating to sites in their respective areas, together with any registered Residents’ Association(s) in whose area the site is located. If oral representations are heard, equal time shall be allowed for views for and against the application.

PLANNING REPORTS

9.2 In writing and preparing planning reports, planning officers should ensure that reports:

are accurate and include the substance, and where necessary the detail, of all objections and other responses received to the consultation;

include a clear assessment against the relevant development plan policies, relevant parts of the National Planning Policy Framework (NPPF), any local finance considerations and any other material planning considerations;

include a written recommendation for a decision to be made;

where necessary, contain technical appraisals which clearly justify the recommendation;

where the recommendation is contrary to provisions of the development plan, the material considerations which justify the departure are clearly stated.

include a clear assessment against the relevant development plan policies, relevant parts of the National Planning Policy Framework (NPPF), any local finance considerations and any other material planning considerations;

The Society proposes:

9.2 In preparing and writing planning reports for committee, and for delegated decision-making, planning officers shall ensure that local people are consulted and have adequate time to respond to consultations on the basis of accurate and timely information. Consultations should not normally take place over the Christmas-New Year holiday, nor during the month of August. Reports must set out fairly and objectively the case for and against an application, and shall be published immediately on the Council’s website and be immediately notified by e-notify. They shall:

(a) be accurate and include the substance of, and degree of support for, any objections and other responses received. Particular weight shall be attached to the views of the Amenity Societies and the relevant Residents’ Association(s).

(b) include a detailed assessment against each of the Borough’s development plan policies relevant to the case, the National Planning Policy Framework (NPPF), the London Plan, the Conservation Area Assessment where relevant, and any other material planning considerations;

(c) include a detailed assessment of the impact of the proposed development on local people, especially the immediate neighbours, and make recommendations for mitigating that impact, including noise vibration and dust, traffic management, and parking spaces.

(d) include any advice given by experts such as an architectural advisory panel, or noise or highway experts.

(e) acknowledge that the technical arguments may be not be conclusive and that wider considerations, for example the strength of public opinion or the impact on the quality of life of local residents, may be decisive.

(f) clearly state the material considerations which justify any departure from the Borough’s development plan.

THE COUNCIL’S OWN DEVELOPMENTS

5.1.1 Proposals for a Council’s own development can lead to suspicions of impropriety. It is perfectly legitimate for such proposals to be submitted to, and decided by, the Council. Proposals for the Council’s own development will be treated no differently from any other application.

The Society proposes:

5.1.1 Under the present law, applications for a Council’s own developments in its area have to be made to the Council itself. This can lead to conflicts of interest and suspicions of impropriety, so applications for the Council’s own developments cannot be treated in the same way as any other application. It is particularly important for such cases to be subject to external scrutiny, and therefore for the Chelsea Society, or the Kensington Society as appropriate, to be involved at all stages of the process, together with any Residents’ Association for the locality in which the application site is located.

5.1.2 Due to their other Council roles, some councillors, such as Lead Members, may be heavily committed to or involved in a Council’s own development proposal. In such circumstances, when a planning matter comes to be decided, if they are part of the decision making body they must consider whether they have an interest or degree of involvement with the proposals that could give the impression of bias or predetermination.

The Society proposes:

5.1.2 Due to their other Council roles, some councillors, such as Lead Members, may be heavily committed to or involved in a Council’s own development proposal. In such circumstances, when a planning matter comes to be decided, they should not be part of the decision-making body, and should not make informal representations. The Council’s case should be presented by the officers.

5.1.3 If they do, the most appropriate approach would be to address the committee or other body (in accordance with the relevant rules of procedure and the Members’ Code of Conduct) but then leave the room and not take part in the deliberation and decision. It is important that the councillor should restrict their address to the relevant planning considerations rather than wider non-planning issues that are not material to the decision.

The Society proposes that 5.1.3 be deleted

PLANNING APPLICATIONS BY COUNCILLORS

5.2.1 If a councillor makes an application or requests pre-application advice for development within the Borough they must notify the Monitoring Officer as soon as reasonably practicable. This includes if someone else makes the submission on their behalf, or if they are acting for another party. Any such applications will be reported to the Planning Committee for decision.

The Society proposes:

5.2.1 It would be unreasonable to prohibit councillors and officers from making a planning application, or requesting pre-application advice, for development within the Borough, but they must notify the Monitoring Officer as soon as they do so. It is however important that they should not be, nor be suspected of being, in a privileged position. They should not therefore make informal representations to officers or councillors, and should employ a professional agent to deal with the matter. Such applications shall not be decided under delegated powers but shall be referred to a meeting of the Planning Committee, at which the applicant shall have no vote and shall have no greater right to address the Committee than an ordinary member of the public. External scrutiny is important in such cases and The Chelsea Society or Kensington Society as appropriate shall be invited to be involved at each stage in the process, together with the Residents’ Association for the area in which the application site is located.

5.2.2 If a councillor or officer submits a planning application or requests pre-application advice they should take no part in its processing or consideration. A councillor who acts as an agent or representative for someone pursuing a planning matter with the Council should also take no part in its processing or consideration.

The Society proposes that 5.2.2 be deleted.

ADVOCACY BY COUNCILLORS

2.2.2 Councillors must not put pressure on officers to put forward a particular recommendation or deal with a planning matter in a particular way. This does not prevent a councillor from asking questions or submitting views to the officer. These views, when received in written form, will be uploaded to the planning file and considered together with other material planning considerations.

The Society proposes:

2.2.2 Subject to 5.2.1 and 3.2.4 councillors, as the elected representatives of local people, may make reasonable efforts to persuade officers to put forward a particular recommendation or deal with a planning matter in a particular way, provided that such representations are recorded in the planning file and considered together with other material considerations.

3.4.8 a Planning Committee member who is also a ward councillor for the relevant area and wishes to campaign for or against an approach to a planning decision could speak at the meeting (in accordance with the Council’s public speaking procedures) on behalf of their constituents, having declared their predetermined position.

The Society proposes:

3.4.8 a councillor for the Ward in which an application site is located who wishes to campaign for or against an approach to a planning decision shall be entitled to speak on behalf of his constituents at any meeting at which the matter is discussed, and to vote if he is a member of the decision-making body.

3.4.9 The councillors can continue to represent those ward interests as a spokesperson for their local community despite being a planning councillor provided that, if the councillor has a disclosable pecuniary interest or other interest (that would give rise to the perception of conflict of interest), they may only participate in accordance with paragraphs 3.2.4, 3.2.5 and 3.2.6 above.

The Society proposes that 3.4.9 be deleted.

OTHER ISSUES

INDEPENDENCE OF COUNCILLORS

3.4.10 If a planning councillor has expressed a view on a planning matter they must be satisfied they can still consider the matter with an open mind and are prepared to take into account any new matters or any new arguments in favour of, or against, until the decision is taken. If they cannot, they should not take part in any decision on the matter.

The Society proposes:

3.4.10 Subject to 3.4.8, if a planning councillor has expressed a view on a planning matter he must be satisfied that he can still consider the matter with an open mind and is prepared to take into account any new facts or arguments in favour, or against. If he cannot, he should not take part in any decision on the matter.

6.4.1 Planning councillors should not become a member of, lead or represent a national or local organisation whose primary purpose is to lobby to promote or oppose planning proposals. If a councillor does, they may appear to be biased.

The Society proposes:

6.4.1 Subject to 3.4.8, planning councillors and planning officers should not lead or represent a national or local organisation engaged in promoting or opposing any planning proposal in the Borough.

6.4.2 Councillors can join general groups which reflect their areas of interest and which concentrate on issues beyond particular planning proposals, but they should disclose an interest where that organisation has made representations on a particular proposal. A councillor can make it clear that they have reserved judgement and the independence to make up their own mind on each separate proposal.

The Society proposes:

6.4.2 Councillors can join general groups which reflect their areas of interest and which deal with issues beyond particular planning proposals, but they should disclose an interest to the Monitoring Officer where that organisation makes representations on a particular proposal in the Borough. Councillors shall make it clear to the organisation that they must retain the independence to make up their own mind on each separate proposal, and not be bound by the policy of the organisation on such proposal.

COUNCILLORS WITH A PECUNIARY INTEREST

3.2.4 Under the Members’ Code of Conduct a councillor who has a disclosable pecuniary interest must, if the interest is not one already on the register of interests or subject to a pending notification to the Monitoring Officer, disclose the existence of that interest to the meeting and thereafter notify the Monitoring Officer of that interest within 28 days of this disclosure.

The Society proposes:

3.2.4 Subject to 5.2.1 a councillor who has a direct or indirect pecuniary interest in an application must not make formal or informal representations concerning that application nor participate in pre-application discussions. If he is a member of the Planning Committee or Planning Applications Committee he shall absent himself for that item of business. [It is essential that councillors cannot be suspected of being in a privileged position for applications in which they have a pecuniary interest]

3.2.6 A councillor with a disclosable pecuniary interest can also present his views to the meeting through other means. For example, the councillor can:

make written comments in a private capacity and addressed to officers, disclosing the existence and nature of the interest in the representations and not seeking preferential consideration of the representations;

use a professional representative to make a representation on the councillor’s behalf in circumstances where the councillor’s planning application is being considered;

arrange for another RBKC councillor to represent the views of constituents on matters in which a councillor has a disclosable pecuniary interest.

The Society proposes that 3.2.6 be deleted except for:

3.2.6 A councillor with a disclosable pecuniary interest should arrange for another RBKC councillor to represent the views of his constituents on matters in which he has such an interest.

COUNCILLORS WITH OTHER INTERESTS

3.3.1 A councillor may have an “other interest” which, whilst not falling within the legal definition of a disclosable pecuniary interest, should be declared in the public interest. This will often be due to bias or predetermination (or the appearance of bias or predetermination) – see section 3.4 below. Examples include:

Where a councillor lives near the site of the planning application being considered;

Where a property affected by the proposed development is owned by a company of which a councillor is a director; and

Where the applicant is a close friend or family member of the councillor (but not falling into the category of a disclosable pecuniary interest e.g. a sibling or a child).

The Society proposes:

3.3.1 A councillor may have an “other interest” which, whilst not falling within the legal definition of a disclosable pecuniary interest, should be declared in the public interest, so as to avoid suspicion of undisclosed bias or predetermination – see section 3.4 below. Examples include:

Where a councillor or a member of his family lives near the site of the planning application being considered;

Where a property affected by the proposed development is owned or let to the councillor or a member of his family or a company of which a councillor is a director or significant shareholder; and

Where the applicant is a close friend or family member of the councillor (but not so close as to create a disclosable pecuniary interest).

GIFTS AND HOSPITALITY

4.5 Officers should be cautious about accepting gifts and hospitality (particularly from planning applicants, agents or lobbyists) and should exercise their discretion. Officers must comply with the requirements of relevant sections of the Code of Conduct for Employees (particularly sections 13 (Hospitality) and 16 (Gifts offered or received). If an officer is unsure as to whether they must declare a gift or hospitality (even if declined) they should seek advice from the Council’s Legal Service.

The Society proposes:

4.5 In order to avoid suspicion of bias or undue influence, officers and councillors shall not accept gifts or hospitality from planning consultants, agents or lobbyists, nor from any person who has made a planning application to the Council yet to be determined, or who has sought pre-application advice from the Council within the previous 12 months.

ACTING AS AGENT

4.6 Officers must not act as agents for people pursuing planning matters within their authority even if they are not involved in the decision making on it.

The Society proposes that the same prohibition be placed on councillors:

PLANNING APPEALS

10.5 Where the appealed decision was contrary to the officers’ recommendation, officers are generally able to present the Council’s case. Where this may not be possible, the case will be presented by a planning consultant employed by the Council.

The Society proposes:

10.5 Where the appealed decision was contrary to officers’ recommendation, the Council’s case shall in appeals considered by the Chief Executive to be major or controversial, be presented by an independent planning consultant or lawyer engaged for the particular case by the Council.

10.5.1 Where notice of appeal, or determination of an appeal, is received by the Council it shall immediately be placed on the Council’s website and be immediately notified by e-notify.

MICHAEL STEPHEN

Planning Committee Chairman

8th January 2019

[1] Where reference is made to the masculine gender it shall be read as a reference to the feminine gender where the context so requires.

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